ANTHONY TYRONE SIMON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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[*1090] Confession of Error
PER CURIAM.
Anthony Tyrone Simon appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse.
Appellant filed a timely Rule 3.850 motion in the trial court. While it was pending, appellant filed a motion for voluntary dismissal so he could file a corrected motion, with the assistance of an inmate law clerk. The trial court denied the Rule 3.850 motion on the merits, which necessarily denied the motion for voluntary dismissal.
The State concedes that under Clark v. State, 491 So. 2d 545 (Fla.1986), the appellant was entitled to withdraw his Rule 3.850 motion where, as here, there would be no prejudice to the State. Id. at 546. The order denying Rule 3.850 relief is reversed and the cause remanded with directions to grant the motion for voluntary dismissal, without prejudice. See id. at 547.
Reversed and remanded.
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Citator
Cited By
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Washington v. State, 937 So. 2d 271 (Fla. 4th DCA 2006)…motion. Washington was entitled to withdraw his rule 3.850 motion up to and until the lower court ruled on the merits, so long as the state did not show prejudice. See Carvalleria v. State, 675 So. 2d 251 (Fla. 3d DCA 1996) (citing Simon v. State, 768 So. 2d 1089 (Fla. 3d DCA 1995)). The state has failed to show how it would be prejudiced by the voluntary dismissal of the rule 3.850 motion. Instead, the state incorrectly contends Washington is not entitled to a belated appeal from an open plea. Whether Washi…
Authorities Cited
- Clark v. State, 491 So. 2d 545 (Fla. 1986)